Unauthorized structures on government land without permission unprotected; writ jurisdiction bars disputed pre-datum facts; strict judicial stance against illegal constructions, no sympathy for violators.

JUDGMENT :

A.S. Gadkari, J.

1) Rule. Rule made returnable forthwith and with the consent of parties, taken up for hearing.

2) By this Petition, under Article 226 of the Constitution of India, the Petitioners are seeking a writ in the nature of mandamus or any other appropriate writ, Order or direction calling for the records and proceedings related to CTS No.661 concerning the structure erected by the Petitioners and to quash and set-aside the Common Public Notice dated 23^rd November, 2022 (Exhibit–I) issued by the Deputy Collector (Encroachment/Removal), Chembur, Mumbai and for other consequential reliefs.

3) Heard Mr. Kanade, learned counsel for the Petitioners, Mr. Singh, learned counsel for Respondent–UOI, Mr. Jadhav, learned Addl. GP for the Respondent Nos.1 and 2–State and Mr. Godbole, learned senior Advocate for the Respondent–BMC. Perused record.

4) Record indicates that, the Deputy Collector (Encroachment and Removal), Chembur Division, Mumbai – 400 001 has issued a Public Notice dated 23^rd November, 2022 calling upon the persons who have constructed illegal constructions on C.T. Survey No.661, Taluka Kurla, Chedda Nagar, to remove their illegally encroached structures. The said land is owned and belonged to the State of Maharashtra and numerous illegal structures are erected by the concerned persons. As the Government of Maharashtra is desirous of get it vacated for its appropriate utilization for the benefit of the State, the Deputy Collector, Chembur Division has issued the said Public Notice.

5) Mr. Kanade, learned counsel for Petitioners submitted that, the Petitioners have constructed their premises on the said plot of land prior to 1960 i.e. prior to the datum line and therefore their structures are tolerated inter alia protected. He submitted that, in Notice of Motion No.2769 of 2023 in Suit No.6910 of 1978 filed by the Petitioners against the Union of India and others, the trial court has granted interim relief in favour of the Petitioners and therefore also, the said structures cannot be demolished. He submitted that, before removal of the structures, the State ought to have given the Petitioners an opportunity of being heard and then only it can take appropriate steps. He therefore requested this Court to consider the Petition sympathetically.

6) At the outset, it may be noted here that, we are not in agreement with the submissions advanced by Mr. Kanade, learned counsel for the Petitioners. It is an admitted fact on record that, there is no sanction or permission granted by any Competent Authority under the law, to construct the said structures by the Petitioners. The Mumbai Municipal Corporation has came into effect in the year 1888 and since then there are specific provisions which are in operation, whereby a person residing within the jurisdiction of Mumbai Municipal Corporation has to seek permission for erecting a structure. The structure whether tolerated prior to datum line or not, is a disputed question of fact and we cannot go into the said disputed question in our Writ jurisdiction under Article 226 of the Constitution of India.

7) It is an admitted fact on record that, no local Authority or no Competent Authority in the State has granted any permission to the Petitioners to construct the said structure. It is the reason the Respondent No.1 has issued the impugned Notice dated 23^rd November, 2022 for removal of illegal structures.

8) At this stage, a useful reference can be made to two recent decisions of the Hon’ble Supreme Court.

8.1) In the case of Rajendra Kumar Barjatya and Anr. v/s. U.P. Avas Evam Vikas Parishad and Ors.